Gray (orse. Formosa) v Formosa
|England & Wales
|THE MASTER OF THE ROLLS,LORD JUSTICE DONOVAN,LORD JUSTICE PEARSON
|25 July 1962
|Judgment citation (vLex)
| EWCA Civ J0725-2
|Court of Appeal
|25 July 1962
 EWCA Civ J0725-2
The Master of The Rolls (Lord Denning)
Lord Justice Donovan and
Lord Justice Pearson
In The Supreme Court of Judicature,
Court of Appeal
From Mr Commissioner Goss
Newcastle upon Tyne District Registry
Mr Herbert Bewick (instructed by Messrs Theodore Goddard & Co., Agents for Messrs Swinburne & Jackson, Gateshead) appeared as Counsel for the Appellant.
Mr Colin Duncan (instructed by the Treasury Solicitor) appeared as Counsel for the queen's Proctor.
The Respondent did not appear.
This is a petition by Mrs Formosa, who was originally Miss Gray, an Englishwoman, living in Chester-le-Street, and her husband, Mr Formosa, was originally a Maltese subject. He came over to this country in 1948 and courted his wife and told her that his intention was to stay permanently in England, and he wished her to marry him. He was a Raman Catholic and be suggested that they should be married in a Roman Catholic church. She said that she was not averse to it and was ready to marry him in a Raman Catholic Church and actually had a course of instruction in the Roman Catholic faith. But eventually they were married at a Registry Office at Chester-le-Street. She said that it was because her husband did not bother to get married at a Roman Catholic Church and he was quite willing to be married at the Registry Office. I pause to say that although married at a Registry Office, that Marriage was by English law clearly lawful. Although it was not necessary to the validity of it that he should be domiciled in England at the time, he was in fact domiciled in England: he married an Englishwoman, and by all the forms needed in our English law, it was a perfectly valid marriage. They had three children. He asked whether they could be christened in the Roman Catholic Church and she said she did not mind. But in fact he did not bother about it and they were eventually baptised in the Church of England. Then in the middle of 1951, whilst she was pregnant with her third child, he told her that he was going to Malta for a holiday. He went on the 28th July, 1951. He said he would be back in weeks on the 21st August, 1951, and he put up a notice in his shop – he was a shoemaker - saying he would be open again on the 23rd August. But he has never come back from that day to this and he has never paid any maintenance for the children or for the wife. She took out an application for maintenance and an order was made in her favour for 30s.0d. a week for herself and 7s.6d. a week for the children, but he didnot pay that. Than she went on National Assistance: and the National Assistance Board obtained an order against him ordering him to pay maintenance for his wife and children. That order was taken out to Malta to be enforced against him there, but the Maltese Courts declined to enforce it. The reason being, as I understand it, that Maltese law does not recognise the English marriage as lawful; because he was a Roman Catholic, baptised as such, and he had not been married in a Roman Catholic Church. And so the order made by our English Courts for maintenance was not enforced at all: the wife was not regarded as a wife entitled to maintenance: the children were not regarded as legitimate. An order was made in respect of one child, the boy, because the husband had admitted paternity of it, and on that ground, having admitted paternity of what they regarded as an illegitimate child, an order was made against him by the Maltese Courts in respect of the maintenance of the son. He paid something under that order for the boy but nothing for the others.
When the wife heard about it she said she did not want to go to Malta. He wrote letters to her saying he wanted her to go there and urging the attractions of Malta, but she wrote on the 15th July, 1953, to him: "How can you expect me to come to Malta when you have got the Judge to say I am not your wife and our children are bastards". I need not go through all the details of the letters which she wrote. In the result she never went to Malta. She said: "You must come back and marry me properly in church here"; but he never did. Eventually in 1959 he took proceedings before the Courts in Malta to have the English marriage declared void. We have been given the Judgment of the Malta Civil Court of the 29th April, 1959, where the matter was fully argued and considered by the Judge. It is said at the and of the Judgment: "Therefore for the purposes of this case, the domicile of the defendant", that is the wife, "is that of the plaintiff", that is the husband, "here inMalta". Than it says that the husband "was baptised in Malta at the Church of at. Cajetan, and so he was baptised in the Catholic Church. Consequently in order that he might have contracted a valid marriage, in default of the circumstances which according to the law might have exempted him, he should have observed the form of celebration prescribed for the members of the Catholic Church, in whichever country he might have bean. Therefore the civil marriage in question results to have bean lacking in the form of celebration essential to its validity". The Malta Civil Court accordingly allowed the husband's claim and "acknowledged and declared that the civil marriage was null". That was pronounced on the 29th April 1959.
The wife, If I may so call her, now brings a petition in our English Courts, first asking that the marriage should be declared a nullity: alternatively, if it is not a nullity but a good marriage, she wishes to have a divorce on the ground of her husband's desertion for more than three years preceding the date of the petition. It is clear that we must decide the first point before we go on to consider the second: for if there was no marriage at all, there can never be any desertion. The Judge has found that there was in fact a marriage, that it was not a nullity, and he has found that the husband did not desert his wife. go he declined to give her any relief at all.
First, then: was this marriage a nullity or is it to be regarded as a nullity by the Courts of England in the circumstances which have happened? It is quite plain from what I have said that this marriage was lawful in England, as lawful as any marriage could be, and the children are as lawfully born in lawful wedlock in England as any children could be. Yet it is said that these Courts have to recognise the decree of the Courts of Malta and to declare in our English Courts that this was no marriage; she is not entitled to maintenance and that the children are illegitimate.
Let us take the steps in Which this argument is pursued. The fundamental point from which it starts la the rule of law that on marriage a wife takes the domicile of her husband, and so long as the marriage continues she has, and can have, no domicile apart from him. Take the most striking case of all. Suppose a husband deserts his wife and goes to Australia, sets up there another homo with another woman, intending to live there permanently. He clearly changes his own domicile. But his wife has never left her home here in England, and intends never to leave it. Yet in point of law, when her husband deserts her, she is still bound by his domicile. Her domicile is not in England where she lives but in Australia, with all the serious legal consequences which follow from it, not only on her marriage but on her will and many other things. That is clearly the law of this country: so stated in the House of Lords in
Now what is the reason for that rule, you nay ask. It is the old notion that in English law a husband and wife are one: and the husband is that one. That rule has been swept away in nearly all branches of the law. At this very moment Parliament is sweeping away one of the remaining relics: it is allowing a husband and wife to sue one another in tort. The one relic which remains is the rule that a wife takes her husband's domicile; it is the last barbarous relic of a wife's servitude. Yet sitting in this Court we must still observe it. It is the very foundation of the jurisdiction of the Maltese Courts that the wife takes the husband's domicile.
So it is said when the husband went in this case to Malta and intended to live there permanently, reverting to his domicile of origin, Malta became her domicile and gave the Courts of Malta jurisdiction to declare her marriage void on the principle stated by the House of Lords in ( ) that where a husband and wife have a common domicile, the Court of the domicile is the Court to declare andpronounce upon the validity or nullity of the marriage. That is the basis of the argument before us.
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